The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

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Thursday, August 25, 2011

This is a short post. I haven't posted in a year, so a lot of things happened that I didn't comment on. Here is a big one. In Connick v. Thompson (2011), the conservative majority of the U.S. Supreme Court ruled that even though a defendant was the victim of a prosecutor withholding exculpatory evidence, and a jury awarded him $14 million for the many years he spent on death row, he instead should receive nothing. You see, prosecutors are immune from lawsuits, and just because a prosecutor deliberately convicts an innocent man, withholding Brady material in the process, that doesn't mean you can sue his employer.

Wednesday, August 24, 2011

I posted more than a year ago about an excellent granting of a habeas corpus petition by Judge Brian McCarville. The defendant is William Richards. His case number is FVI00826. The essence of the case is that he was accused of murdering his wife by bashing her head in. After three mistrials, he was convicted and sentenced to life imprisonment. Then he was able to obtain favorable DNA evidence, and show that there were serious with the evidence presented against him at his trial. I mean, serious. Like, they framed him. Oh, and an expert that was hot and heavy against him kind of fully recanted his testimony and/or it was all shown to be BS. Mostly anyway. One of the few times it has happened, and certainly the only time that I have seen it, Judge McCarville granted the habeas corpus petition. It is CERTAIN that if he is retried, he cannot be convicted. Not with what we now know.

Then, on 11-19-2010, the California Court of Appeal wrote and unpublished decision REVERSING Judge McCarville's excellent opinion. Appelleate Court Justice Hollenhorst wrote the opinion, and he was joined by McKinster and Richli. All three are right wing Republican tools. The opinion is as terrible as it is disingenuous. Here is my summary of the opinion:

Too bad, so sad. We don't believe your new "evidence." You may have fooled Judge McCarville, but you won't fool us. This new "evidence" should have been brought forward at trial, and in fact some of it was. So it isn't really new "evidence." And the jury didn't believe the defense then, so, again, too bad, so sad. Oh, and just because someone who is crucial to your conviction is later found to be a complete liar and kind of, sort of, mostly admits it, to some extent or another, again, too bad, so sad. You lose. Yeah, we suppose that "actually innocent" people are kind of, sort of entitled at least to a new trial. But not your guy. Oh, and did I mention that we think your new "evidence" isn't very good? Oh, and Judge McCarville didn't apply the correct standard. We could tell you the correct standard, but we are pretty busy up here, denying all your silly motions. The standard is something like: The new evidence must undermine the prosecution's entire case and unerringly point towrd his innocence. We realize this is an impossible standard, but we're going to hold you to it. Oh, and stop spending so many days on these stupid hearings for murderers, Judge McCarville - we're just going to crap on whatever you rule on anyway.

Oh, and there were a LOT of case citations - I'll spare you those. I suppose that I shouldn't get too indignant over this local travesty of justice, but I can't help myself. Let me clarify: I KNOW Judge McCarville. He isn't some bleeding heart liberal. He calls them mostly like he sees them, but like most judges in this county, he is pro-prosecution. Remember, they are all elected, and they don't get re-elected by letting people charged with crimes go free. If Judge McCarville spends the time to do a habeas corpus petition and grants it, you had better damned sure believe that that was the right thing to do.

The case is currently before the California Supreme Court. I don't expect the Court to reverse the Appellate Court. I have just about zero faith in the California Supreme Court on criminal justice issues. They are a mostly zombie-controlled, Republican-appointed bench. I met the Chief Justice recently and she seemed nice, but she is another former prosecutor plucked from convicting people and put on the bench. Some of the justices aren't too bad. I like some of Justice Kennard's opinions. Justice Werdegar too, sometimes. The newest Justice, who hasn't been confirmed yet, Goodwin Liu, is promising. But he is just one guy. I am giving the California Supreme Court short shrift here because they have written some awful opinions in the criminal defense world for about 16 years now, when Rose Bird was forced off the bench. If they reverse the 4th Circuit, Division 2, I will be amazed. I will personally sing their praises. But I fully expect them to follow Justice Scalia's dissent (joined by Justice Thomas) in In re Davis (2009) 130 S.Ct. 1, wherein Scalia stated: "This Court has NEVR held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually innocent."

In other words: Fuck you. We don't care how "actually innocent" you may be. So long as you got a "fair trial," you will be punished. Period. Finality is king. Never mind whether witnesses recant their testimony. Who cares? By the way, the remedy in the Troy Davis case was to remand the case back to the district court for a new habeas petition, which everyone agreed was without any power. Said petition was promptly denied, and the denial was then affirmed by the Eleventh Circuit. Troy Davis is now getting closer to execution. He got his "actual innocence hearing," and he got to call various witness that showed 9 of 11 witnesses who testified against him at trial recanted their testimony. 9 of 11? Really? Would 10 of 12 have done the trick? How about if all 11 had recanted? The U.S. Supreme Court refused to hear the Mr. Davis's appeal from the habeas petition denial. Here is a good discussion of where Troy Davis is at now: http://www.habeasbook.com/2011/04/another-dead-end-for-troy-anthony-davis/

The lesson here? Don't get convicted the first time. Because if you do, even if you can later prove you were actually inocent, to just about ANY degree of certainty, so long as you got a "fair trial," you're guilty. Period.

Monday, August 22, 2011

I admit it. I supported Barack Obama. I was fooled. He is a corporatist, and he does not have the interests of most Americans at heart. Don't get me wrong - I am a Democrat, a liberal, a progressive, and I can't stand any of the Republicans running. But I am really and truly disappointed in Barack Obama. I will vote for him come next November. I have to. Any of the Republican pinheads running will appoint monstrosities to the U.S. Supreme Court. Justices Elene Kagan and Sonya Sotomayor have turned out okay for the criminal defense field. Not great, but it could have been a LOT worse.

But it will be with a sad and heavy heart that I will push the button for this man. He cares only about his campaign contributions, and he isn't interested in helping the poor, or even the middle calss. Hillary would have been better. Joe Biden wouldn't have, of course, but at least it would have been honest. That said, Biden would have protected unions. In fairness, I was pulling for John Edwards while he was putting it into that other woman, while his dying wife was, well, dying. So I've been fooled before.

All of that said, I can honestly say that as I have grown older, it seems clearer and clearer that our system is hopelessly corrupted toward the wealthy, and capable of only a minimum of fairness toward those seeking justice who don't have cash. More often than not, the poor who are charged with a crime get jailed and have to await a trial that stretches further and further out. The division isn't between guilt or innocence many times, but on whether the person charged is savvy enough to know the rules of the system. But overall, the system that I have seen, and keep seeing is blanketed with a hateful attitude toward the poor, a distaste for those of color, and most seriously, an anipathy towards the rule of law, the presumption of innocence and the requirement that DA's have to prove guilt beyond a reasonable doubt.

I also see the Public Defender as an entity more and more under attack. Whatever my feelings toward a particular administration, there is a constant and growing fear that the Public Defender will be outsourced to those who will do the job far cheaper, and with just about zero care for clients.